I find it fascinating to watch how data protection in general and GDPR in particular play out with the huge multinationals which it has been designed to capture, and which arguably have the most to lose in terms of fines. Facebook and Google are once again in the news in relation to their use of personal data. And the High Court judgement against Morrisons sets a precedent which aligns with GDPR’s intention of individuals’ rights to have their data protected.

Google accused of bypassing privacy settings to harvest personal information of 5.4 million iPhone users between 2011 and 2012

The search engine tech giant Google is being taken to court by a group called Google You Owe Us, led by ex-Which director Richard Lloyd. The group claims that several hundred pounds could be owed in compensation to the millions of victims of Google’s transgression against privacy rights, meaning Google could face a massive financial penalty.

Google breached DPA and PECR by misusing cookies

Google exploited cookies, which are small pieces of computer text that collect data from devices, to run large-scale targeted ad campaigns. In the UK Google’s actions were in breach of the Data Protection Act (DPA) and the Privacy and Electronic Communication Regulation (PECR). For such breaches after the General Data Protection Regulation (GDPR) comes into force in late May 2018, organisations could face a fine of up to €20 million or 4% of annual global turnover (whichever is higher – and for the billion-dollar giant Google, obviously the latter). However, this case relates to a period prior to GDPR.

Did you go online with your iPhone? Were your privacy preferences ignored?

For several months in 2011 and 2012, Google stands accused of bypassing the default privacy settings on Apple phones in order to track the online behaviour of Safari users, by placing ad-tracking cookies onto the devices. This then enabled advertisers to target content to those devices and their users.

The Google activity has become known as the ‘Safari workaround,’ and while it affected various devices, the lawsuit filed in the High Court addresses the targeting of iPhone users.

Over 5 million people in Britain had an iphone during the period. “In all my years speaking up for consumers,” Mr Lloyd from Google You Owe Us states, “I’ve rarely seen such a massive abuse of trust where so many people have no way to seek redress on their own. Through this action, we will send a strong message to Google and other tech giants in Silicon Valley that we’re not afraid to fight back.”

According to the veteran privacy rights campaigner, Google claimed that he must go to California, the heartland of the Silicon revolution, if he wanted to pursue legal action against the firm, to which he responded, “It is disappointing that they are trying to hide behind procedural and jurisdictional issues rather than being held to account for their actions.”

According to the BBC, the broadcaster was told by Google that these legal proceedings are “not new” and that they “have defended similar cases before.” Google has stated that they do not believe the case has any merit and that they intend to contest it.

While there is no precedent in the UK for such massive action against Google, in the US Google has settled two large-scale litigation cases out of court. Regarding the same activity, the tech company agreed to pay a record $22.5m (£16.8m) in a case brought by the US Federal Trade Commission in 2012. It also made out of court settlements with a small number of British consumers.

According to the BBC, the case will probably be heard in the High Court in Spring 2018, a month or so prior to the enforcement of the GDPR.

Morrisons found liable for employee data breach

Morrisons workers brought a claim against the supermarket after a former member of staff, senior internal auditor Andrew Skelton (imprisoned as a result of his actions) stole and posted online confidential data (including salary and bank details) about nearly 100,000 employees.

In an historic High Court ruling, the Supermarket has been found liable for Skelton’s actions, which means that those affected may claim compensation for the “upset and distress” caused.

The case is the first data leak class action in the UK. Morrisons has said it will appeal the decision.

Facebook claims European data protection standards will not allow for their pattern-recognition “suicide alert tool” to be usable in EU.

Facebook blames GDPR for its plans to withhold Suicide Prevention software from EU

Facebook’s decision to deny EU countries a pattern-recognition tool to alert authorities to users possibly suffering from depression or suicidal thoughts has been criticised as a move to undermine the upcoming tightening of EU-wide data protection standards, enshrined in the General Data Protection Regulation (GDPR).

Facebook has argued that their Artificial Intelligence (AI) programme which scans the social media network for troubling comments and posts that might indicate suicidal ideation will not be employed in EU countries on the grounds that European policy-makers and the public at large are too sensitive about privacy issues to allow site-wide scanning.

In a blogpost, Facebook’s VP of Product Management stated, “we are starting to roll out artificial intelligence outside the US to help identify when someone might be expressing thoughts of suicide, including on Facebook Live. This will eventually be available worldwide, except the EU.”

Tim Turner, a data consultant based in Manchester, has suggested that the move might be “a shot across the EU’s bows […] Facebook perhaps wants to undermine the GDPR — which doesn’t change many of the legal challenges significantly for this — and they’re using this as a method to do so.”

Mr Turner continues, “nobody could argue with wanting to save lives, and it could be a way of watering down legislation that is a challenge to Facebook’s data hungry business model. Without details of what they think the legal problems are with this, I’m not sure they deserve the benefit of the doubt.”

The Information Commissioner’s Office (ICO) releases GDPR guidance on “contracts and liabilities between controllers and processors.”

Organisations only have until May 2018 to review, redraft and negotiate controller / processor contracts

Ahead of the May 2018 deadline for GDPR enforcement, the ICO has released a 28-page document providing “detailed, practical guidance for UK organisations on contracts between controllers and processors under the GDPR.” The document aims to explain the requirements and responsibilities of data controllers as well as the new liabilities of processors. The document points out that many of the requirements may already be covered by existing contracts, but that the expansion and clarification of contractual clauses to evidence compliance with all aspects of the new regulations will likely be necessary.

Under the new regulations, contracts will be required between data controllers (the organisations responsible for the holding and use of the data) and data processors (those involved in the collection and ‘processing’ of data). This written contract or “other legal act” is to “evidence and govern” the working relationship of both parties. Under the current rules, these contracts are only advised as a measure to demonstrate compliance when necessary.

It is noted that “standard contractual clauses” as well as certification schemes for contractual codes of conduct provided by the EU Commission or a supervisory authority such as the ICO will be allowed and encouraged by the GDPR, but that as yet none have been drafted.

Emphasis is given to the GDPR’s expansion of liability to include data processors as well as controllers, the former now liable to pay damages or become subject to penalties if not found compliant. On top of this, processors will need to have contracts with other processors (sub-processors) if they are to utilise their services, with written authorisation from the controller.

What needs to be included in the contract:

Contracts must explain:

Contracts must explain several key points – if not, you will be fined!

The subject matter and duration of the processing

The nature and purpose of the processing

The type of personal data and categories of data subject

The obligations and rights of the controller

Contracts must, as a minimum, require the processor to:

Only act on the written instructions of the controller

Ensure that people processing the data are subject to a duty of confidence

Take appropriate measures to ensure the security of processing

Only engage sub-processors with the prior consent of the controller and under a written contract

Assist the controller in providing subject access and allowing data subjects to exercise their rights under the GDPR

Assist the controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments

Delete or return all personal data to the controller as requested at the end of the contract

Submit to audits and inspections, provide the controller with whatever information it needs to ensure that they are both meeting their Article 28 obligations, and tell the controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.

The CTN, the forum for data protection and privacy authorities among Commonwealth countries, has appointed a new co-chair to sit alongside the incumbent UK Information Commissioner. The decision was made at the CTN Annual General Meeting on 25th September. The organisation promotes cross-border co-operation for data security and privacy objectives.

Patricia Poku, also recently appointed as Executive Director and Member of the Board for the Data Protection Commission of Ghana, has worked as Head of Data Protection for the 2012 London Olympic Games and Global Director for Data Protection & Privacy at World Vision International.

Increasing cybercrime is driving transational cooperation

With the rise of cybercrime and data abuse as international phenomena, not only on the level of government operative activities but also syndicate-level action usually involving the use of malware and the new universal digital currency Bitcoin, transnational co-operation is more important than ever, and gaining in participants. In July, South Africa joined the CTN and in August, the Cayman Islands issued its first Data Protection Bill, working for “adequacy with the EU directive,” the GDPR.

Global traction for best-practice polices

That the GDPR necessitates organisations outside the EU fulfilling data protection adequacy standards with EU member states if they wish to do business or in any way process data in Europe indicates that the best-practice policies encouraged by the GDPR may find global traction – and organisations such as the CTN have an important role to play in these processes. GDPR-level policies and practices will be especially desirable given the emphasis the ICO has been putting on the benefits to consumer trust that robust data protection provides. It should be viewed that in a global digital economy, data protection best-practice makes commercial sense.

GDPR Debate

On Monday, 16th October, Data Compliant’s Victoria Tuffill was invited by AccountancyWeb to join a panel discussion on how GDPR will impact accountants and tax agents.

The other members of the panel were our host, John Stokdyk, Global Editor of AccountingWEB, who kept us all on the straight and narrow, while asking some very pertinent questions; Ian Cooper from Thomson Reuters who gave strong insights into technical solutions; and Dave Tucker from Thompson Jenner LLP, who provided a very useful practitioner viewpoint.

GDPR in General

There is a presumption that every professional body is fully informed of all compliance regulations within their field of expertise. But the continuing barrage of changes and adjustments to European and British law makes it easy to drop the ball.

GDPR is a typical example. To quote the Information Commissioner, Elizabeth Denham, it’s “The biggest change to data protection law for a generation”. Yet for many accountants – and so many others – it’s only just appearing on the radar. This means there’s an increasingly limited amount of time to be ready.

GDPR has been 20 years coming, and is intended to bring the law up to date – in terms of new technology, new ways we communicate with each other, and the increasing press coverage and consumer awareness of personal data and how it’s used by professional organisations and others. GDPR has been law for 17 months now, and it will be enforced from May 2018.

GDPR and Accountants

So what does GDPR mean for accountants in particular?

Accountants will have to deal with the fact that it’s designed to give individuals back their own control over their own personal information and strengthens their rights.

It increases compliance and record keeping obligations on accountants. GDPR makes it very plain that any firm which processes personal data is obliged to protect that data – for accountants that responsibility is very significant given the nature of the personal data an accountant holds.

There are increased enforcement powers – I’m sure everyone’s heard of the maximum fine of E20,000 or 4% of global turnover, whichever is higher. But also, the media have a strong hold on the whole area of data breaches – and often the reputational damage has a far greater impact than the fine.

Accountancy firms must know precisely what data they hold and where it’s held so they can they assess the scale of the issue, and be sure to comply with the demands of GDPR.

The video covers key points for practitioners to understand before they can prepare for compliance, and summarises some initial steps they should take today to prepare their firms.

The other members of the panel were our host, John Stokdyk, Global Editor of AccountingWEB, who kept us all on the straight and narrow, while asking some very pertinent questions; Ian Cooper from Thomson Reuters who gave strong insights into technical solutions; and Dave Tucker from Thompson Jenner LLP, who provided a very useful practitioner viewpoint.

It is a 45 minute video, so for those with limited time, I have broken down the areas covered into bite-size chunks:

Data Compliant is working with its clients to help them prepare for GDPR, so if you are concerned about how GDPR will affect your firm or business, feel free to give us a call and have a chat on 01787 277742 or email dc@datacompliant.co.uk if you’d like more information.

1 in 5 UK businesses have no data protection budget – compared to 4 in 5 local authorities

A report by international email management company Mimecast states that a fifth of surveyed UK businesses do not have a specific budget dedicated to information security or data protection – a source of great concern ahead of the stringent General Data Protection Regulation (GDPR) in May 2018.

Over 80% of councils were found to have no funding towards meeting mandatory GDPR requirements

This reinforces the concerns over the information provided in response to a FOI request by M-Files Corporation in July, which found that four out of five councils had, at that time, yet to allocate funding towards meeting the new requirements of the GDPR. That research also found that 56% of local authorities contacted had still not appointed a data protection officer despite this being mandated by GDPR.

That such a substantial proportion of businesses have no explicit budgetary or financial commitment to combatting cybercrime and personal data abuse may be particularly unwelcome news to proponents and enforcers of the new GDPR. The Information Commissioner’s Office, the independent data protection authority, has been working hard over the last year to publicise and prepare British organisations for the impending legislation.

The lack of data protection budgeting is compounded by Mimecast’s findings that many UK businesses may not be monitoring their data efficiently. For instance, 15% of the surveyed organisations stated that they did not know whether they had suffered a data loss incident during the last year or not. 27% blamed human error for previous losses, which would indicate that a large number of organisations will need to start taking employee data protection and handling training much more seriously.

44% of the surveyed organisations suspect that their email system contains personal sensitive information as defined under the GDPR, but only 17% of them believed that this information could be retrieved immediately. The average amount of hours it would take British organisations to track down sensitive personal information was calculated as 8.

The report suggests that a significant number of organisations are very underprepared for the increased responsibility and accountability demanded by the GDPR. For help and information on preparing for the GDPR, see the Data Compliant main site.

10th International Conference of Information Commissioners (ICIC 2017) resolves to tackle difficulties of access to information on outsourced public services

The Information Commissioner’s Office (ICO) has confirmed a resolution on international action for improving access to information frameworks surrounding contracted-out public services, a system which has seen increased use throughout Europe, and rapid growth in the UK since 2010.

Challenges have been arising for a couple of decades concerning the transparency of information about the “new modes of delivery for public services.” This is often because the analysis of the efficacy of subcontracted services can be rendered difficult when, due to the principle of competition in the private sector, certain information – particularly regarding the production process of public services – can escape public scrutiny on the grounds of the protection of commercial confidentiality.

The International Conference, jointly hosted by Information Commissioner Elizabeth Denham and Acting Scottish Information Commissioner Margaret Keyse, was attended by Commissioners of 39 jurisdictions from 30 countries and seven continents. The resolution was passed in Manchester on 21st September following dialogue with civil society groups.

The resolution highlights the “challenge of scrutinising public expenditure and the performance of services provided by outsourced contractors” and “the impact on important democratic values such as accountability and transparency and the wider pursuit of the public interest.”

The Conference summarised that the first step to be taken would be the promotion of “global open contracting standards,” presumably as a means of garnering consensus on the importance of transparency in this regard for the benefit of the public, researchers and policy-makers. A conference working group is to be formed to “share practice about different initiatives that have been developed to tackle the issue.”

The event lasted two days and ran with the title: ‘Trust, transparency and progressive information rights.’ Contributions were heard from academics, journalists, freedom of information campaigners and regulators.

Access to information on the grounds of individual rights and the safeguarding of public interests will be strengthened by the provisions of the GDPR. This resolution provides a reminder and opportunity for organisations working as subcontractors to review the ways in which they store and handle data. Transparency and accountability, longer considered in any way contradictory, are key watchwords for the clutch of data protection reforms taking place throughout the world. Many organisations would do well to assess whether they are in a position to meet the standards of good governance and best practice regarding data management, which will soon become a benchmark for consumer trust.

Ex-employee of Leicester City Council fined for stealing vulnerable people’s personal information

The ICO has confirmed the prosecution of an ex-council worker for unlawfully obtaining the personal information of service users of Leicester City Council’s Adult Social Care Department.

Personal data, including medical conditions, care and financial records were “unlawfully” obtained by an ex-council worker

The personal details of vulnerable people were taken without his employer’s consent, and breached the current Data Protection Act 1998. 34 emails containing the personal information of 349 individuals, including sensitive personal data such as medical conditions, care and financial details and records of debt, were sent to a private email address prior to the individual having left the council.

The ICO’s Head of Enforcement Steve Eckersley stated, “Employees need to understand the consequences of taking people’s personal information with them when they leave a job role. It’s illegal and when you’re caught, you will be prosecuted.”

Equifax data breach – hackers may have access to hundreds of thousands of British consumers’ personal details

The Information Commissioner’s Office (ICO) is investigating a hack on Equifax, a large credit rating agency based in Atlanta, USA, to find out whether and to what extent the company’s British consumers’ personal details have been obtained by the hackers. The FBI is also said to be monitoring the situation.

The cyberattack, reported earlier this month, occurred in May and July. The company has already admitted that 143 million American customers’ personal details have been obtained by the hackers.

400,000 UK customers may be affected by Equifax breach

The US information that the hackers may have accessed includes names, social security numbers, dates of birth, addresses and driving licence details, as well as over 200,000 credit card numbers.

The ICO told Equifax that the company must warn British residents of the data breach and inform them of any information relating to them which has been obtained by the cyber attackers. The credit agency promptly issued alerts to the affected Britons, stating however that an ‘identity takeover’ was unlikely.

Britons would do well to be mindful that, once a hacker has name, date of birth, email addresses, and telephone numbers, it takes little effort to acquire the missing elements, which is why the ICO has warned members of the public to remain vigilant against unsolicited emails and communications. They should also be particularly wary of unexpected transactions or activity recorded on their financial statements.

Shares in Equifax saw considerable reductions throughout the week, and two of the company’s senior executives, the Chief Information Officer and Chief Security Officer have resigned with immediate effect..

The Data Protection Bill 2017, which includes GPDR, has been published

GDPR is included in its entirety in the UK’s Data Protection Bill 2017, now going through Parliament

On 14th September, the Department for Digital, Culture, Media and Sport published the Data Protection Bill 2017. The Bill has been anticipated since the Queen’s speech in June, in which the government outlined its plan to implement the European-wide data protection game-changer GDPR into British law.

Culture secretary Karen Bradley explains: “The Data Protection Bill will give people more control over their data, support businesses in their use of data, and prepare Britain for Brexit. In the digital world strong cyber security and data protection go hand in hand. This Bill is a key component of our work to secure personal information online.”

While the Bill inculcates the GDPR, and therefore provides the basis for data-sharing and other adequacy agreements with the EU after Brexit, the government has stated that it managed to negotiate some ‘vital’ and ‘proportionate’ exemptions for the UK.

Some of the exemptions are provided for journalists accessing personal data to expose wrongdoing or for the good of the public; scientific and research organisations such as museums if their work is hindered; anti-doping bodies; financial firms handling personal data on suspicion of terrorist financing; money laundering; and employment where access may be neededs to personal data to fulfil the requirements of employment law.

The second reading of the Bill in Parliament will take place on 10th October, after which a general debate on Brexit and data protection takes place on the 12th.

As yet, there have been few critics of the proposed legislation outside certain industries whose use of big data makes them particularly susceptible to possible data protection breaches and massive fines (£17m or 4% annual global turnover). Some industry leaders have called for exemptions, including the private pension giant Scottish Widows, who claimed GDPR-level regulations would make it impossible for them to contact some of their customers without breaking the law. However, according to the government, 80% of Britons do not believe that they have control over their information online, and the Bill enjoys widespread support at this point. The Shadow Cabinet has yet to offer any official response or criticism.

Design faults in the Council’s ‘Ticket Viewer’ system, which keeps CCTV images of parking offences, compromised the security of 89,000 peoples’ personal data. Some of this data is under the category of sensitive personal information, e.g. medical details disclosed for the sake of appealing against a parking fine.

Corporate pensions company Scottish Widows to lobby for specific exemptions from the General Data Protection Regulation ahead of EU initiative’s May 2018 introduction.

Scottish Widows seeks derogations in relation to communicating with its customers in order to “bring people to better outcomes.”

The Lloyds Banking Group subsidiary Scottish Widows, the 202-year old life, pensions and investment company based in Edinburgh, has called for derogations from the GDPR.

A great deal has been written across the Internet about the impending GDPR, and much of the information available is contradictory. In fact many organisations and companies have been at pains to work out what exactly will be expected of them come May 2018. While it is true that the GDPR will substantially increase policy enforcers’ remits for penalising breaches of data protection law, the decontextualized figure of monetary penalties reaching €20 million or 4% of annual global turnover – while accurate in severe cases – has become something of a tub-thump for critics of the regulation.

Nevertheless, the GDPR is the most ambitious and widescale attempt to secure individual privacy rights in a proliferating global information economy to date, and organisations should be preparing for compliance. But the tangible benefits from consumer and investor trust provided by data compliance should always be kept in sight. There is more information about the GDPR on this blog and the Data Compliant main site.

Certain sectors will feel the effects of GDPR – in terms of the scale of work to prepare for compliance – more than others. It is perhaps understandable, therefore, why Scottish Widows, whose pension schemes may often be supplemented by semi-regular advice and contact, would seek derogations from the GDPR’s tightened conditions for proving consent to specific types of communications. Since the manner in which consent to communicate with their customers was acquired by Scottish Widows will not be recognised under the new laws, the company points out that “in future we will not be able to speak to old customers we are currently allowed to speak to.”

Scottish Widows’ head of policy, pensions and investments Peter Glancy’s central claim is that “GDPR means we can’t do a lot of things that you might want to be able to do to bring people to better outcomes.”

Article 23 of the GDPR enables legislators to provide derogations in certain circumstances. The Home Office and Department of Health for instance have specific derogations so as not to interfere with the safeguarding of public health and security. Scottish Widows cite the Treasury’s and DWP’s encouragement of increased pension savings, and so it may well be that the company plans to lobby for specific exemptions on the grounds that, as it stands, the GDPR may put pressure on the safeguarding of the public’s “economic or financial interests.”

Profiling low income workers and vulnerable people for marketing purposes in gambling industry provokes outrage and renewed calls for reform.

The ICO penalised charities for “wealth profiling”. Gambling companies are also “wealth profiling” in reverse – to target people on low incomes who can ill afford to play

If doubts remain that the systematic misuse of personal data demands tougher data protection regulations, these may be dispelled by revelations that the gambling industry has been using third party affiliates to harvest data so that online casinos and bookmakers can target people on low incomes and former betting addicts.

An increase in the cost of gambling ads has prompted the industry to adopt more aggressive marketing and profiling with the use of data analysis. An investigation by the Guardian including interviews with industry and ex-industry insiders describes a system whereby data providers or ‘data houses’ collect information on age, income, debt, credit information and insurance details. This information is then passed on to betting affiliates, who in turn refer customers to online bookmakers for a fee. This helps the affiliates and the gambling firms tailor their marketing to people on low incomes, who, according to a digital marketer, “were among the most successfully targeted segments.”

The data is procured through various prize and raffle sites that prompt participants to divulge personal information after a lengthy terms and conditions that marketers in the industry suspect serves only to obscure to many users how and where the data will be transferred and used.

This practice, which enables ex-addicts to be tempted back into gambling by the offer of free bets, has been described as extremely effective. In November last year, the Information Commissioner’s Office (ICO) targeted more than 400 companies after allegations the betting industry was sending spam texts (a misuse of personal data). But it is not mentioned that any official measures were taken after the investigations, which might have included such actions as a fine of £500,000 under the current regulations. Gambling companies are regulated by the slightly separate Gambling Commission, who seek to ensure responsible marketing and practice. But under the GDPR it may well be that the ICO would have licence to take a much stronger stance against the industry’s entrenched abuse of personal information to encourage problem gambling.

According to the board, a new variant of the malware Bitpaymer, different to the infamous global WannaCry malware, infected its network and led to some appointment and procedure cancellations. Investigations are ongoing into how the malware managed to infect the system without detection.

Complete defence against ransomware attacks is problematic for the NHS because certain vital life-saving machinery and equipment could be disturbed or rendered dysfunctional if the NHS network is changed too dramatically (i.e. tweaked to improve anti-virus protection).

A spokesman for the board’s IT department told the BBC, “Our security software and systems were up to date with the latest signature files, but as this was a new malware variant the latest security software was unable to detect it. Following analysis of the malware our security providers issued an updated signature so that this variant can now be detected and blocked.”

Catching the hackers in the act

Attacks on newly-set up online servers start within just over one hour, and are then subjected to “constant” assault.

According to an experiment conducted by the BBC, cyber-criminals start attacking newly set-up online servers about an hour after they are switched on.

The BBC asked a security company, Cybereason, to carry out to judge the scale and calibre of cyber-attacks that firms face every day. A “honeypot” was then set up, in which servers were given real, public IP addresses and other identifying information that announced their online presence, each was configured to resemble, superficially at least, a legitimate server. Each server could accept requests for webpages, file transfers and secure networking, and was accessible online for about 170 hours.

They found that that automated attack tools scanned such servers about 71 minutes after they were set up online, trying to find areas they could exploit. Once the machines had been found by the bots, they were subjected to a “constant” assault by the attack tools.

Vulnerable people’s personal information exposed online for five years

Vulnerable customers’ personal data needs significant care to protect the individuals and their homes from harm

Nottinghamshire County Council has been fined £70,000 by the Information Commissioner’s Office for posting genders, addresses, postcodes and care needs of elderly and disabled people in an online directory – without basic security or access restrictions such as a basic login requiring username or password. The data also included details of the individuals’ care needs, the number of home visits per day and whether they were or had been in hospital. Though names were not included on the portal, it would have taken very little effort to identify the individuals from their addresses and genders.

This breach was discovered when a member of the public was able to access and view the data without any need to login, and was concerned that it could enable criminals to target vulnerable people – especially as such criminals would be aware that the home would be empty if the occupant was in hospital.

The ICO’s Head of Enforcement, Steve Eckersley, stated that there was no good reason for the council to have overlooked the need to put robust measures in place to protect the data – the council had financial and staffing resources available. He described the breach as “serious and prolonged” and “totally unacceptable and inexcusable.”

The “Home Care Allocation System” (HCAS) online portal was launched in July 2011, to allow social care providers to confirm that they had capacity to support a particular service user. The breach was reported in June 2016, and by this time the HCAS system contained a directory of 81 service users. It is understood that the data of 3,000 people had been posted in the five years the system was online.

Not surprisingly, the Council offered no mitigation to the ICO. This is a typical example of where a Data Privacy Impact Assessement will be mandated under GDPR.

GDPR is a key component of the Government’s data protection paper released yesterday, relating to how a partnership between the UK and the EU could be structured in relation to the ‘exchange and protection’ of personal data post Brexit.

Regardless of Brexit, the UK intends to continue to play a leading global role in promoting data protection standards, and plans to work side by side with the EU and other global partners to protect:

individuals’ rights to privacy and control over their own data

the ability of individuals, companies and other organisations to share data to create services valued by consumers

the ability of law enforcement bodies to protect citizens from crime and terrorism

The government paper restates that the UK’s new Data Protection Bill (definitely needed – current legislation is now some 20 years old) will include not only the EU’s General Data Protection Regulation (GDPR), but also the Data Protection Directive (DPD) which relates to personal data being processed for law enforcement purposes.

This means that, when we leave the EU, both its and our own UK data protection law will be aligned. This is important because it provides the UK with a sound base from which to achieve “adequacy status” to avoid the detrimental economic impact of any disruption in cross-border data flows.

What is Adequacy Status?

It is likely that the UK will require adequacy status in order for data to flow freely between UK and EEA

Each EEA country is allowed to transfer personal data freely, because all states have to comply with GDPR.

For countries that are not members of the EEA (and it is likely that the UK will fall into this category post-Brexit), the EU Commission may decide that a country’s data protection framework is “adequate”. In these cases, data may also flow freely between EEA members and “adequate” third party countries – for example, Switzerland, Isle of Man, New Zealand.

Adequacy is probably the simplest method of achieving the free flow of data between the EU and UK post Brexit. Other methods are available, but they are significantly more onerous in time, paperwork and cost for organisations.

How to achieve Adequacy Status

Any third country (eg UK) can request that the Commission considers them for an adequacy decision. The Commission may then, if it wishes, assess the nature of that country’s data protection rules, enforcement, supervision and practices to satisfy themselves that they are sufficient to provide an adequate level of protection – ie “essentially equivalent” to those applied in the EU.

In order to achieve adequacy post Brexit, the UK will need to be compliant, not only with EU data protection law, but also with wider global data protection standards. As the UK’s data protection law fully implements the EU’s GDPR and DPD, the government hopes “to agree, early in the process, to mutually recognise each other’s data protection frameworks as a basis for the continue free flows of data between the EU (and other EU adequate countries) and the UK from the point of exit”.

GDPR will, in any case, continue to apply to any UK businesses offering goods or services to individuals within the EEA.

The UK intends to remain a safe destination for personal data with some of the strongest data protection standards in the world

The ICO may continue to play an active role in promoting understanding of the regulatory challenges faced both by organisations and individuals; being involved in future EU regulatory discussion; and sharing its expertise with other EU Data Protection Authorities.

It’s worth noting that the Government paper makes it quite plain that both sides will benefit from such an arrangement. The paper suggests that (based on various reports) around 43% of all large EU digital companies are started in the UK, and that 75% of the UK’s cross-border data flows are with EU countries. The implication is that any disruption in cross-border data flows could harm the economies of both parties.

Clearly building a new relationship is a key element of the Brexit negotiations. And adequacy is a vital part of that relationship.